BVA9512854
DOCKET NO. 93-13 569 ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in Huntington,
West Virginia
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Stephen F. Sylvester, Counsel
INTRODUCTION
The veteran served on active duty from July 1948 to October
1951.
A rating decision in January 1992 deferred consideration of
an earlier effective date for a grant of special monthly
pension. The decision on the question was never completed by
the regional office (RO). The appellant filed a claim for
accrued benefits, but it was not adjudicated by the RO. The
claim for accrued benefits is not inextricably intertwined
with the issue on appeal and is referred to the RO for
appropriate action.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that the RO committed error in denying
entitlement to service connection for the cause of the
veteran's death, in that the veteran's service-connected
disabilities contributed substantially to cause his death.
In pertinent part, it is argued that the veteran's service-
connected anxiety reaction caused stress, which caused
diabetes mellitus, which caused kidney damage and eventual
renal failure, resulting in congestive heart failure and
death.
DECISION OF THE BOARD
The Board of Veterans' Appeals (Board), in accordance with
the provisions of 38 U.S.C.A. § 7104 (West 1991), has
reviewed and considered all of the evidence and material of
record in the claims file. Based on its review of the
relevant evidence in this matter, and for the following
reasons and bases, it is the decision of the Board that the
appellant's claim for service connection for the cause of the
veteran's death is not well grounded.
FINDINGS OF FACT
1. The veteran died on March [redacted] 1992.
2. According to the certificate of death, the immediate
cause of the veteran's death was metastatic carcinoma of the
bowel and prostate. Significant conditions contributing to
the veteran's death were congestive heart failure and
diabetes mellitus.
3. At the time of the veteran's death, service connection
was in effect for tinnitus, bilateral trenchfoot, an anxiety
reaction, and bilateral defective hearing.
4. Carcinoma of the bowel and prostate, congestive heart
failure, and diabetes mellitus are not shown to have been
present in service, or within the first year following
service discharge.
5. There is no competent evidence in the file demonstrating
that carcinoma of the bowel and prostate, congestive heart
failure, or diabetes mellitus was related to the veteran's
active military service.
6. There is no competent evidence of record showing that
tinnitus, bilateral trenchfoot, an anxiety reaction, or
bilateral defective hearing, for which service connection was
in effect at the time of death, caused or contributed to
cause the death of the veteran.
7. There is no competent evidence on file showing a
causative relationship between tinnitus, bilateral
trenchfoot, an anxiety reaction, or bilateral defective
hearing and fatal carcinoma of the bowel and prostate.
CONCLUSION OF LAW
The claim for service connection for the cause of the
veteran's death is not well grounded. 38 U.S.C.A. §§ 1310,
5107(a) (West 1991); 38 C.F.R. § 3.312 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The threshold question which must be resolved is whether the
appellant has presented evidence that her claim is well-
grounded. See 38 U.S.C.A. § 5107(a) (West 1991); Murphy v.
Derwinski, 1 Vet.App. 78, 81 (1990). A well grounded claim
is a plausible claim, meaning a claim which appears to be
meritorious. See Murphy, 1 Vet.App. at 81. A mere
allegation that the cause of death is service connected is
not sufficient; the appellant must submit evidence in support
of her claim which would "justify a belief by a fair and
impartial individual that the claim is plausible."
38 U.S.C.A. § 5107(a) (West 1991); Tirpak v. Derwinski,
2 Vet.App. 609, 611 (1992). In that regard, a lay person is
not competent to make a medical diagnosis, or to relate a
given medical disorder to a specific cause. See Espiritu v.
Derwinski, 2 Vet.App. 492, 494 (1992). Accordingly, lay
statements regarding a medical diagnosis or causation cannot
constitute evidence sufficient to make a claim well grounded
pursuant to the provisions of 38 U.S.C.A. § 5107(a) (West
1991), where the determinant issue is one of medical
causation or medical diagnosis. See Grottveit v. Brown,
5 Vet.App. 91, 93 (1993). There must also be evidence of
incurrence or aggravation of a disease or injury in service
and evidence of a nexus between the inservice disease or
injury and the current disability. See
Caluza v. Brown, ___ Vet.App. ___, No. 90-818, slip op. at 10
(April 12, 1995).
Where the appellant fails to submit evidence in support of a
plausible claim, the Department of Veterans Affairs (VA) is
under no duty to assist her in any further development of her
claim. Id. Moreover, a claim which is not well grounded
must be dismissed, in that it does not present a question of
fact or law over which the Board has jurisdiction.
38 U.S.C.A. § 7105(d)(5) (West 1991); Boeck v. Brown,
6 Vet.App. 14, 17 (1993).
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
military service. 38 U.S.C.A. §§ 1110, 1131 (West 1991).
Moreover, where a veteran served continuously for ninety (90)
days or more during a period of war, or during peacetime
service after December 31, 1946, and cardiovascular/renal
disease, including congestive heart failure, a malignant
tumor, including metastatic carcinoma of the bowel and
prostate, or diabetes mellitus becomes manifest to a degree
of 10 percent within one year from date of termination of
such service, such disease shall be presumed to have been
incurred in service, even though there is no evidence of such
disease during the period of service. This presumption is
rebuttable by affirmative evidence to the contrary.
38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991);
38 C.F.R. §§ 3.307, 3.309 (1994).
In order to establish service connection for the cause of the
veteran's death, the evidence must show that disability
incurred in or aggravated by service either caused or
contributed substantially or materially to cause death. For
a service-connected disability to be the cause of death, it
must singly or with some other condition be the immediate or
underlying cause, or be etiologically related. For a
service-connected disability to constitute a contributory
cause, it is not sufficient to show that it causally shared
in producing death, but rather it must be shown that there
was a causal connection. 38 U.S.C.A. § 1310 (West 1991);
38 C.F.R. § 3.312 (1994). There are primary causes of death
which by their very nature are so overwhelming that eventual
death can be anticipated irrespective of coexisting
conditions, but, even in such cases, there is for
consideration whether there may be a reasonable basis for
holding that a service-connected condition was of such
severity as to have a material influence in accelerating
death. In this situation, however, it would not generally be
reasonable to hold that a service-connected condition
accelerated death unless such condition affected a vital
organ and was of itself of a progressive or debilitating
nature. 38 C.F.R. § 3.312(c)(4) (1994).
The veteran in this case served on active duty from July 1948
to October 1951. He died on March [redacted] 1992, of metastatic
carcinoma of the bowel and prostate. Contributing causes to
the veteran's death were congestive heart failure and
diabetes mellitus. At the time of his death, service
connection was in effect for tinnitus, bilateral trenchfoot,
an anxiety reaction, and bilateral defective hearing.
The veteran’s service medical records show that, when he was
hospitalized for psychiatric reasons, hypertension was
suspected. The report shows that he was to be evaluated
further. The medical board report shows that a later
examination was negative for hypertension, and the medical
report accompanying the medical board report does not contain
any further information concerning hypertension. The service
medical records are negative for any findings indicative of
cancer or diabetes mellitus. The earliest clinical
indication of the presence of any of these disorders is
revealed by VA records dated in 1986, more than 35 years
following service discharge. When hospitalized in 1986 for a
myocardinal infarction, it was noted that the veteran had had
no apparent prior history of chest pain or a heart problem.
At present, there exists no evidence that metastatic
carcinoma of the bowel and prostate, congestive heart
failure, or diabetes mellitus was incurred in or aggravated
by active service, or that any of these disabilities became
manifest to a degree of 10 percent or more within one year of
discharge, nor is it so contended. Nor is there competent
evidence demonstrating a causal relationship between the
veteran's period of active service and metastatic carcinoma,
congestive heart failure, and diabetes mellitus. The medical
evidence on file does not indicate that the veteran's
service-connected tinnitus, trenchfoot, anxiety reaction, or
defective hearing caused or contributed to cause the
veteran's death. As noted above, the appellant contends that
the veteran's service-connected anxiety reaction caused
"stress," which caused diabetes mellitus, which caused kidney
damage and eventual failure resulting in congestive heart
failure and death. However, the appellant has failed to
furnish any medical evidence buttressing this theory. As
noted above, the appellant’s assertions are not competent
evidence when the determinative issue requires medical
expertise. See Espiritu, 2 Vet.App. at 494; Grottveit,
5 Vet.App. at 93. Because the appellant has not submitted
any competent evidence showing that disability incurred or
aggravated in service caused or contributed to cause the
veteran's death, or evidence that any cause of the veteran’s
death was related to service, her claim is not well grounded,
and must be dismissed.
ORDER
The claim for service connection for the cause of the
veteran's death is dismissed.
WILLIAM J. REDDY
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal
is appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision
which you have received is your notice of the action taken on
your appeal by the Board of Veterans' Appeals.